Scaltrito v NRMA Insurance Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Scaltrito v NRMA Insurance Limited [2003]  NSWCA 63

FILE NUMBER(S):
40480/01

HEARING DATE(S):    06/03/03

JUDGMENT DATE:      01/04/2003

PARTIES:
Tony Scaltrito (Appellant)
NRMA Insurance Limited (Respondent)

JUDGMENT OF:        Sheller JA Young CJ in Eq Grove J   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     428/01

LOWER COURT JUDICIAL OFFICER:   Gamble ADCJ

COUNSEL:
M R Aldridge SC and E E Welsh (Appellant)
C R R Hoeben SC with W Austron (Respondent)

SOLICITORS:
The Norton Law Group, Lapaine Pomare  & Forster (Appellant)
Hicksons (Respondent)

CATCHWORDS:
Workers Compensation- Limitations of actions- Leave to commence proceedings required- When to exercise the discretion- Onus of proof upon the worker- Must be fair and just to extend time- Explanation of delay required- Leave not to be granted if it will lead to prejudice which will prevent a fair trial- Must demonstrate viability of the cause of action- Workers Compensation Act 1987, s 151D. Workplace Injury Management and Workers Compensation Act 1998- Retrospective application of the Act- Changes to rights to obtain common law damages in certain situations- Futility of an action brought out of time, even where injury occurred before the commencement of the amendment- Workers Compensation Act 1987, ss 151G, 151H. (D)

LEGISLATION CITED:
Workers Compensation Act 1987, ss 151D, 151G, 151H
Workplace Injury Management and Workers Compensation Act 1998

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40480/01

SHELLER JA
YOUNG CJ in EQ
GROVE J

Tuesday 1 April 2003

SCALTRITO v NRMA INSURANCE LIMITED

Judgment

1. SHELLER JA:  I have had the benefit of reading the judgments in draft prepared by Young CJ in Eq and Grove J.  I agree that the Judge at first instance may have overlooked that Dr Parmegiani was a treating doctor.  But even so, for the reasons expressed by Grove J, I am satisfied it was open to the Judge not to accept what the doctor said.  Accordingly for this reason, and those given by Young CJ in Eq, I would dismiss the appeal with costs. 

2. I can see the force of what Young CJ in Eq has said about the futility point.  I prefer, since it is unnecessary to express a view about it, not to express any view.

3. YOUNG CJ in EQ:  The appellant, while working for the defendant as a storeman on 30 July 1995, lifted a large box and suffered back pain.  The appellant complains that he had been working a lot of overtime, doing a lot of shifting and that the back pain came about because of an unsafe system of work.  After this incident, the appellant was unable to perform his normal duties.  He was put on alternative work for a year or so;  however, his employment was terminated in March 1998.

4. The appellant first consulted a solicitor on 4 September 1997 for advice about his rights generally. However, he did not commence proceedings before 30 July 1998 being the date three years from the accident which, by…